A battle of Wills - A cautionary tale.

In approximately 2 weeks time I appear in court in Estepona to contest my late father's Will under the cross border inheritance Law.  Upon I his death I learned that I had been disinherited in favour of a Spanish woman who had been in control during the last 3 years of his life, when had become ill with dementia and therefore easy to manipulate. 

I find the process of making a Will in Spain to be a very casual affair and wide open to corrupt practice.  At nearly 90 years old, having suffered a serious fall resulting in a bleed to the brain, a Notary was summoned to his hospital bedside by said 'carer.'  The Notary did not consult his doctor as to whether he had sufficient capacity to make a Will, bearing in mind he was about to disinherit not only his daughter, but also his wife (my stepmother), in favour of a non-family member.  Only six months previously, during one of my visits he had given me a copy of his will naming me a main beneficiary.  Having survived this injury, a more comprehensive Will was then drawn up by which time he did not realise he had a wife or daughter.

Unbelievably, it would appear that an Open Will made by a British person in accordance with English Law, giving the right to testamentary freedom, is not required to be witnessed!  A Will is only signed by the Notary and the Testator which is deeply disturbing and open to manipulation.  As my father had been domiciled in Spain for more than 30 years with no UK assets, his Will should have been drawn up under Spanish Law which states forced heirship. 

I have waited 9 years for justice and hope that the Judge will make the right decision and give me closue on what has been a truly stressful and worrying time.  Despite maintaining regular contact with my father, I was unable to prevent this happening.

I tell my story, given the number of British ex-pats living in Spain who are or may become, vulnerable and easy prey to unscrupulous people.

Rosie:   I understand, for over 30 years it has been possible in Spain for a non-Spanish national to make a Will either under Spanish law  or under the law of the country of their nationality.  I understand that under Spanish law one is obliged to leave ones assets in a proscribed way, however, under say UK, they can leave their assets in any way they wish.

I have always made my Wills under UK law, so in my present Will my second wife is the sole beneficiary, my sons of my first marriage are not left anything.  The Will is legal. (Over the past few years I have given them and ,my grandchildren the money I would have left them, so everyone is happy)

 I understand one can always challenge a Will and I assume that is what your lawyer is doing on your behalf.  Maybe based on the argument that your father was not mentally competent to make the Will.

PS I do not believe the Spanish system for making a Will is any more unreliable than the UK system. That too can be abused.    My aunt made a Will in UK when she was not compos mentis, and her lawyer allowed it to happen. Fortunately for me the plan by her step son backfired so he lost ou; my brother and I did not.  But we were lucky.

Hello Johnzx,

Thank you for your reply.  As I understand the law until 2015, if a British person had no assets in the UK and had no intention of returning to the UK and particularly being in receipt of a Spanish pension having been employed in Spain as was my father, then Spanish succession Law should apply.  It is a complicated issue as the two Laws are in conflict but as my father's blood relative, I am cautiously optimistic of winning my case.  To have tried to overturn the Will due to my father's lack of capacity would have been more difficult to achieve a positive result although I KNOW he was not of sound mind as he would never have disinherited his daughter but proving it is another matter.

The law changed then because people were complaining about the Spanish succession law. The EU ruling brought in was that you could stipulate the will, in Spain, should be handled in the same way as those in your home country. The will must have this written in otherwise Spanish succession laws will apply.

I believe you'll find there is considerable difference between Spanish & English law on this subject and the procedure involved.  It's not compulsory but invariably a solicitor is used in the UK.  There are many requirements on the solicitor including the need to demonstrate testamentary capacity.

In the event of a dispute a would be beneficiary has the legal right to demand full details from the solicitor involved under a legal protocol known as Larke v Nugus statement.  The purpose of this is to avoid unnecessary litigation.  Under Larke v Nugus the solicitor must provide full details of events under a prescribed format, free of charge.  If they fail to demonstrate a proper process was undertaken in making and the necessary checks were made in making the will they may become professionally liable.

This tends to put pressure on solicitors to be massively more cautious than seems to have been experienced in the situation described within this thread!

Rosie.      I first made a Will in Spain in 1983,  It stated that it applied only to my assets in Spain and that it was made according to the laws of UK.    I believe that if it had not state that then Spanish law would have applied. ( I believe that is;  one third to the spouse, one third divided equally between the children and one third can be left as the testator wishes).

I have lived here permanent for past 30 years with no intention of every returning to UK.  During that time I have made a few Wills before notaries.  Everyone has had the line that it was made under UK law.

At no time have I been aware that the notary was assessing my mental ability to make the Will.

In about 1970 I made a Will in UK.  I did it myself, no solicitor involved. I used a blank form which I purchased from HMSO.   I had to be witnessed by two people.  That first one I had vetted by a solicitor friend who said it was sufficient and legal in UK law.   

Until I ceased to have assets in UK I made several Wills using the HMSO format.  I always stated clearly that the Will applied to my UK assets only.

PS      With the Spanish system the original Will is contained within the records of the Notary before whom it was authorised and only a certified copy (copia simple) is given to the person making the Will.  All Wills are recorded in a central index as to when and where made.  That means one can be certain that one has the last one made.  This is unlike in UK where the person making a Will keeps the original and at the time of death the heirs must search in the hope finding a Wiill and when one is found, hope that it is in fact the Last Will and Testament.

Seems to me the Notary was negligent. To cut a long story short...my elderly, (92) father was taking a family member to court over stolen money.  The family member said my father was not capable of remembering the facts etc and that the money in question was a gift. We took him to a Notary and the Notary questioned him at great length and came to the descision that he was indeed of sound mind and totally  understood everything around him etc etc. Unfortunatly he died before the case came to court. However, under threat of court proceedings, and the Notary's statement the money was returned.

Cross borders Wills: https://www.eyeonspain.com/blogs/costaluz/15275/legal-tip-1319-european-inheritance-law-compulsory-since-august-17th-2015-a-new-spanish-will-advised.aspx

Notary´s role when authorising a Will:

Notary´s appraisal on legal capacity of the grantor can be destroyed by posterior evidences. These need to prove that at the moment of will grating the grantor was not in full mental capacity. Evidences need to be very accurate and convincing as a Notary statement has special value regarding veracity.

Thank you for all your comments.  I cannot see how the Notary could deem my father to have sufficient capacity due to his medical condition at the time and especially as he was being 'controlled' but a Spanish woman half his age who was to be the sole benificiary, in place of his family.  However, this is not the main argument to the case, only the background.  It is the Law of conflict, cross border inheritance issues but I still do not understand how a Will drawn up in Spain does not have to be independently witnessed.  I have a very strong feeling that my father was subjected to undue influence at the time of signing i.e. that the sole beneficiary was present, but of course I can't prove it.  Anyway, having made all my plans to be in Estepona for the Court case, I am now informed it has been suspended!  Que alegria!

" A Will is only signed by the Notary and the Testator which is deeply disturbing and open to manipulation. "

Surely, if the will is being made under English Law then it needs two independant, non benificiary witnesses. The exceptions are very few and, I would have thought, extreemly unlikely in the case of a will made outside of the UK.

I would suggest you need someone qualified in English law, at the hearing, to testify that the will is invalid.

Anyone qualified, near Estepona, reading this, who would be willing to help Rosie?

Tteedd   if the will is being made under English Law then it needs two independant

 ‘Made under the new of the country where the testator is a national’ means that the way in which the rules of inherence are applied, i.e. who you can leave your assets to,  so they are as per the law of that country and not as in Spàin where one is obliged to leave assets as prescribed by the law.

The phrase is not all embracing, 

 Thus one can still only inherit up to to around 17,000€ in Spain (depending on relationship to deceased and on the Region) without having to pay inheritance tax,  not £ 325,000 as it would be in UK. 

Also, the tax is still on the inheritor not on the estate as it UK.

Even if we were qualified to give advice we would need to sit down and go through all the detail before making proper comment, which obviously isn't going to happen.

But for me covering the basics is important when you go to court (which I've only done once so far in Spain, but many times in the UK).  There are several cruclial issues upon which I'm still hazy.  

I'm surprised that the new, replacement will is said to be written under English law - why would a Spanish national and a Spanish notary do so?  By the sound of things your father was unlikely to have made that suggestion.  So presumably this was done for devious means by the Spanish woman as the only was of breaking the normal "default" position of the will being written under Spanish law which would rule her out.

Therefore surely it becomes increasingly vital to obtain the fullest possible evidence from as many sources as possible that your father did not have mental testamentary capacity.

Without knowing any of the background I might well be completely wrong.  But I would be thinking of building a case against the Spanish woman who seems highly manipulative and I wonder if she's stolen money or other assets.  Was her qualification genuine?  Does she have a Police record?  Did she pay the Notary, which of course would be unusual?  Certainly going through any bank accounts and pension receipts might be worthwhile.  

I mentioned before the practice in the UK of asking for a Larke v Nugus statement which is common practice in this situation.  So surely if the will was written under English Law is it not reasonable to expect that English practice was followed?  From what has been outined the Notary would fail to be able to justify that he had fulfilled the expected requirements, but it would do no harm in asking for a statement from him to simplify the process of making this point in court.

Good luck.

 Acer.

I think you have failed to understand the original post.  The person making it is British not Spanish national.

The Will was made under Spanish law which allows for UK law of inheritance rules to apply.

That is not the same as making it under UK law. That is not possible, Spanish law applies in Spain.

If made under Spanish law the testator must leave one third to spouse, one third to children divided between them and one third may be left  to whom so ever they wish.

Of course UK law permits leaving assets in whatever way one wishes.  That is why usually non Spaniards make Wills according to the law of their country, to the extent permitted by Spanish law..

I think you are jumping to a conclusion re the Spanish woman which may not be justified.   It is just as likely that the OP is ‘annoyed’ because the testator made the choice that he did.  If that was his choice then so be it.  If there was fraud involved, that will be decided by the court.

** EDITED - OFF THREAD - discuss via PM if necessary, or PM moderators if you feel you need their help**

John

Both you and Rosie indicated that it was possible, and that the will was made under, English law.

My comment followed from this.

It seems from your explanation that this is not the case. The will was made under Spainsh law with the right to have English rules of inheritance.

I will be looking at and possibly revising my Spanish will when I return to Spain.

..........................................................................

Just found copies of our Spanish wills.

They do not mention English rules of inheritance but do say that we are UK citizens resident in the UK. The disbursements are exactly the same as our English wills   ie not according to Spanish rules of inheritance.

Interestingly they go, at some lengths, into the qualifacations of the translator.

I'm happy with them as they are, assuming that they do allow disbursement as stated. I'll probably run them past my present abogardo when I return to Spain.

Brexit affected matter:

Once the UK is out of the EU, Brussels IV will not apply anymore:

https://www.eyeonspain.com/blogs/costaluz/13674/Legal-tip-1198-Brussels-IV-or-on-how-to-avoid-my-forced-heirs.aspx

After Brexit, it will  be  just advisable to have a Spanish will  for the Spanish side of probate procedure  to be quicker Law applying to your inheritance will be Law of your nationality unless UK law resend the matter to Spain Law:

Several situations and applicable Law:

The deceased left only property in Spain but his legal domicile was in the UK. Spanish law applies to the entire estate of the deceased. 

When the deceased had property in Spain and his legal domicile  was in Spain. The Spanish court applies Spanish law to the entire estate of the deceased. 

When the deceased had property in UK and non estate assets in Spain and his legal domicilie is in England. The Spanish court would apply English law. 

When the deceased had property in England and Spain and had his last legal domicile is in England. English law would apply.

Maria,    When the deceased had property in Spain and his legal domicile  was in Spain. The Spanish court applies Spanish law to the entire estate of the deceased.

I should be interested on your comments on this:-  Extract from:

http://www.abacoadvisers.com/spain_explained/blog/inheritance/new-eu-legislation-affecting-your-spanish-will

Extract from  The Regulation (EU) No. 650/2012 states:

EU citizens habitually residing in Spain (Residents) will be subject to the Spanish succession law, despite their nationality, unless they specifically state in their will the wish for the succession law of their country of origin to apply.

This means that if you have a Spanish will it must specifically state that you wish your own country’s inheritance law to apply. If this clause isn’t included then the distribution of your inheritance will automatically revert to Spanish law. If you have no will at all, then Spanish law will also apply.  This does make a difference.

It has been very interesting reading everyone's thoughts and opinions.  Clearly, my father was encouraged to make a Will in accordance with his own national law as this meant he could be manipulated to have testamentary freedom, thereby the 'carer' could override the family.  However, the background is undoubtedly fraud, as this person not only manged to avail herself of my father's estate but also that of my late stepmother including her property.  As she was already in the late stages of Alzheimer's when my father passed away, this was the reason why my father was coerced into make his estate avaiable to said 'carer.'  A substantial amount of money was withdrawn by my father prior to his passing away, accompanied by said 'carer'.  So the background is most definitely fraud as this person has used legal means drawing up various documents which include a forged signature, aided by the notary who never questioned the situation,  to manipulate a vulnerable person, (I have not involved myself in the fraud regarding my stepmother as she has a son who, unwisely, decided not to pursue the matter.) 

This is my second attempt to get justice.  My first attempt failed as the Judge said it was not a criminal case but civil!  So, this, according to my solicitor is my best chance of becoming my father's rightful heir.  As all my rights have been stripped by this woman, I am hoping to win my case so that I may find out where the money went.  Coincidentally, an appartment was purchased by said 'carer' around the time of the withdrawal of funds!  It has been like peeling an onion.  Slowly more things have emerged due to the dilligence of my solicitor. As I said, the case was scheduled for the 27th of this month but has now been suspended.  As yet I don't know why.  So, Happy Easter one and all!

** EDITED - Off thread **

You say, “My first attempt failed as the Judge said it was not a criminal case but civil.”   As a result of that Judicial Finding you are pursuing a civil action, which is tantamount to you saying you accept their actions were not criminal.   

 In the light of that, I think you may be unwise to make criminal allegations here against the carer and/or the notary.    

If either of them, or an informed friend,  reads this they will probably have no doubt you are referring to them and you may find yourself in a civil court.

This message was last edited by johnzx on 15/04/2017.

John:

I am  describing below what the scenario will be after Brexit, when EU Regulation No. 650/2012, (Brussels IV) will no longer apply.